Agenda

OWBA Giving Back Statewide Event Ohio Women’s Bar Association November 20, 2014 12:30 p.m. – 4:45 p.m. Location: Frost Brown Todd (3300 Great American Tower, 301 East Fourth Street, Cincinnati, Ohio 45202)

12:30 p.m. – 1:15 p.m. Registration/Networking (sponsored by Reminger)

1:15 p.m. – 1:25 p.m. Welcome and Introductions

1:25 p.m. – 2:25 p.m. CLE Portion – General (1.00 hour) Record Retention Requirements in the Public & Private Sectors When is it time to purge? This session will cover some of the general records retention guidelines in the public and private sectors.

• Doreen Canton, Taft Stettinius & Hollister LLP • Christine Zimmer, City of Cincinnati’s Solicitor’s Office

2:25 p.m. – 3:25 p.m. CLE Portion – General (1.00 hour) Panel Discussion on Navigating Transitions and Creating Opportunities– Public to Private – Private to Public Public-private partnerships are essential in the legal profession. In this session, attorneys who have successfully moved across the public and private sectors will discuss the importance of public-private partnerships, discuss their career paths, and provide recommendations for those thinking of making similar transitions.

• Allison Bisig Oswell, Esq., Hamilton County Prosecutors Office • Magistrate Judge Stephanie K. Bowman, U.S. District Court, Southern District of Ohio (Moderator) • Magistrate Anne Flottman, Domestic Relations Division of the Warren County Court of Common Pleas • Chandra Napora, Morgan Verkamp, LLC • Laura Welles Wilson, Freking & • Betz, LLC

3:25 p.m. – 3:35 p.m. Break

3:35 p.m. – 4:45 p.m. CLE Portion – General (1.00 hour) Finding Balance, Creating Your Personal Brand & the Power of Networking Power-up on your personal branding, networking and work-life balance. This session will cover the interplay between these three important components of success with speakers offering basic but transformative best practices.

• Yvette Simpson, Cincinnati City Council

TOTAL CLE HOURS: 3.0

Doreen Canton

Doreen Canton is partner and co-chair of the Labor & Employment practice group of Taft, graduated from Canisius College and the University of Cincinnati College of Law, where she was Lead Articles Editor of the University of Cincinnati Law Review. Since 1988, she has advised and represented private and public employers in all areas of labor and employment law. She has a great deal of jury trial experience, and has tried many Title VII, Title IX and state law claims, including age, sex, race, disability and national origin discrimination, harassment, retaliation, defamation and contract claims to defense verdicts. She also has substantial experience in traditional labor matters, including arbitrations, contract negotiations, elections and labor disputes. Doreen has handled hundreds of proceedings before administrative agencies such as the Equal Employment Opportunity Commission, the United States Department of Labor, the National Labor Relations Board, the Occupational Safety and Health Review Commission, and other state and local agencies. Doreen speaks frequently at professional seminars including the American, Ohio and Cincinnati Bar Associations, the Midwest Labor & Employment Law Seminar, the Cincinnati Employers Resource Association. She also presents training programs for management and human resources professionals. She is a member of the Cincinnati Management Lawyers Association and the American Employment Law Council, both organizations of senior management employment attorneys. Doreen is also an elected fellow in the American College of Trial Lawyers.

Christine Zimmer

Christine Zimmer has been a Senior Assistant Solicitor in the City of Cincinnati’s Solicitor’s Office since 2005 and currently serves as the Interim Chief Counsel in the General Counsel section of the Solicitor’s office. The General Counsel section drafts legislation, prepares and reviews contracts, prepares legal opinions, and provides legal advice and training to City Council, the Mayor, the City Manager, and City departments, including all aspects of public records requests and records retention.

Prior to joining the Cincinnati Solicitor’s Office, Christine taught legal research and writing and advocacy at the University of Cincinnati College of Law and practiced with Taft, Stettinius and Hollister in the litigation and tax departments. She graduated from the University of North Carolina School of Law.

Allison Bisig Oswall, Esq.

Allison began her legal career as an Assistant Prosecuting Attorney with the Hamilton County Prosecutor’s Office. She then transitioned to private practice, working as an associate at two area law firms, focusing on commercial litigation and commercial real estate transactions. In 2013, Allison rejoined the Hamilton County Prosecutor’s Office and currently serves as an Assistant Prosecuting Attorney

Allison received her Bachelor of Arts degree from the University of Dayton in 2003 and graduated from Ohio Northern University Pettit College of Law in 2006. She is actively involved in the Cincinnati Bar Association, having served on the Board of Trustees and chaired the Women Lawyers Committee. Allison is a graduate of the Inaugural Class of the OSBA Leadership Academy and was a member of Class XVI of the Cincinnati Academy of Leadership for Lawyers.

Ann Flottman

Anne Flottman is a Magistrate in the Domestic Relations Division of the Warren County Court of Common Pleas. Before joining the court, Anne was a partner at Wood and Lamping, LLP in Cincinnati, and devoted her practice to family law matters. She is a Certified Family Law Specialist, a member of the Academy of Collaborative Law Professionals, and a member of Class 16 of the Cincinnati Academy of Leadership for Lawyers. She taught the Family Law Practice class at the UC College of Law, and volunteered frequently with the Volunteer Lawyers Project. She has a B.A. from the University of Kentucky, an M.A. from Xavier University, and a J.D. from the UC College of Law.

Chandra Napora

Chandra knows a thing or two about navigating transitions. After a decade of establishing her career in the non-profit healthcare world, she decided to embark on an entirely new path and went to the University Of Cincinnati College Of Law at 33. Although she thought she would pursue public interest law, she found herself enjoying transactional work and spent the first two years of her legal career in the business and finance group of a large regional firm, based in Louisville. But then she happened upon an opportunity she couldn't pass up: clerking for a federal judge. So, she moved back to Cincinnati and clerked for Judge Spiegel at the US District Court for the Southern District of Ohio for four years. With experience as a corporate lawyer and years spent enmeshed in the world of federal litigation, she was unsure of what her next step would be. But she found the perfect niche and now works for a boutique firm in Cincinnati that focuses exclusively on representing whistleblowers in suits involving fraud on the government.

Laura Welles Wilson

Laura Welles Wilson joined Freking & Betz, LLC in August 2014. She concentrates her practice in Labor and Employment law and Litigation.

Laura was a Law Clerk in the United States District Court for the Southern District of Ohio for over fifteen years. She served as a Career Clerk for the Honorable Timothy S. Hogan for fourteen years until his retirement in October 2010. As a career clerk, Laura assisted the Court with all aspects of civil litigation pending before the Judge, including researching and drafting orders or report and recommendations on pre-trial and post-trial motions, drafting jury instructions, and drafting findings of fact and conclusions of law for bench trials in a wide range of civil cases including employment discrimination, prisoner civil rights, ERISA, tax, copyright, contract, and social security cases.

Laura entered private practice in 2011 with Blank Rome, LLP where her practice was concentrated in general corporate and commercial litigation matters, including consumer finance, administrative appeals and arbitrations, environmental issues, and employment law. Among her accomplishments was successfully briefing and arguing an employment law case in the Sixth Circuit Court of Appeals, winning a reversal of the District Court’s summary judgment order. In August 2014 she joined Freking and Betz, LLC where her practice focuses on employment law matters.

Laura is a graduate of the University of Cincinnati College of Law and Dartmouth College. Prior to attending law school, she worked in the non-profit sector as the Education Coordinator for Women Helping Women, Inc. She is a life-long resident of Cincinnati and has been a volunteer for several local organizations including, Knox Presbyterian Church, The Seven Hills Schools Alumni Council, The Dartmouth Club of Cincinnati, Cincinnati Youth Collaborative, Terrace Park Elementary School, Terrace Park Recreation Commission, and the Indian Hill Winter Club.

Yvette Simpson President Pro Tem Yvette Simpson is serving her second term on Cincinnati City Council. She is the Chair of the Human Services, Youth, and Arts committee, and serves on the Budget & Finance, Law and Public Safety, and Neighborhoods committees. Simpson is also a member of the Hamilton County Regional Planning Commission, as appointed by the City Planning Commission.

On Council, Simpson focuses on creating jobs by developing and expanding Cincinnati small businesses, improving the lives and empowering Cincinnati youth, and providing the tools for our neighborhoods to become more vibrant places to live and work. To further these goals, Councilmember Simpson sponsored a motion to create two new commissions, the Small Business Advisory Committee (the SBAC) and the Youth Commission of Cincinnati (the YCC). She is currently the City Council Representative and coordinator of these commissions. Members of the SBAC and YCC include local leaders in the areas of small business and youth, respectively. The commissions are charged with evaluating the state of Cincinnati small business and youth and advising the Mayor and City Council on ways to improve in these areas.

Simpson also led the effort to create a new consortium, "Youth to Work" comprised of the departments and organizations using city funding to create summer employment opportunities for Cincinnati youth. In 2012, city employment programs put $814,690 into the community through youth salaries, and the consortium worked together to host the City's first Summer Youth Employment Celebration on Fountain Square. In 2013, the consortium again worked together to improve the program and held its annual celebration in Washington Park. In the future, the Youth to Work consortium will share information and resources to improve the various summer employment programs offered by the City, creating more meaningful work experiences for youth.

Councilmember Simpson spends as much time as possible in the community talking directly with her constituents about their ideas and concerns at neighborhood walks/coffees and community council meetings. Since her election, Simpson has been to nearly all Cincinnati's 52 neighborhoods, and plans to reach all our communities during in her first term.

Simpson grew up in Lincoln Heights, and after graduating from Princeton High School attended Miami University and the University of Cincinnati College of Law. Simpson practiced law at several firms before developing and directing Miami University's first Pre- Law Program. She currently serves as Counsel at Ulmer & Berne LLP and is a recent graduate of Xavier University's Executive MBA Program.

Simpson has held board positions with many community organizations throughout Cincinnati, including Dress for Success, YWCA, and the Urban League. She is also a member of the Delta Sigma Theta Sorority, Inc., Cincinnati Alumnae Chapter and the Cincinnati Chapter of the Links, Inc.

Simpson has received several honors and distinctions, including the 2014 YWCA Career Woman of Achievement Award, the Girl Scouts Leaders of Promise Award (2012), and Voices of the Valley's MLK Dreamkeepers Award (2012). In 2005, she was named one of the Business Courier's Forty under 40 and a YWCA Rising Star.

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WELCOME! Record Retention in the Public & Private Sectors Presented By: Giving Back Statewide Event • Doreen Canton, Taft Stettinius & Hollister LLP Thank you to • Christine Zimmer, City of Cincinnati’s Solicitor’s Office for hosting

Networking Sponsored by:

Discussion Topics Records Retention 1 Introduction 2 Federal Recordkeeping Requirements

•Feder al St at ut es Applicab l e t o Priv at e Em pl oyer s

• Types of Documents Covered and Retention Periods Presented by 3 Medium of Retention and Disposal Doreen Canton Partner and Co-Chair, Labor & Employment Group • Physical vs. Electronic Records Taft Stettinius & Hollister LLP • Disposal of Records • November 20, 2014 •

© 2014 Taft Stettinius & Hollister LLP 3 4

Introduction Every Employment Process Involves Documentation • Record Retention Requirements What to keep? • Retention policies for employment records are critical. For how long? – Numerous federal and state – More than two dozen regulatory frameworks exist. empltliloyment laws impose a w ide – Employers are eager to discard variety of recordkeeping requirements. documents to reduce maintenance and storage costs. – Put in place to guarantee that documentation of o Expose themselves to significant risk and certain employment practices is available to evaluate cost from compliance and legal standpoints. employers’ compliance with the underlying statutes. – Important to establish a comprehensive record – Failure to comply can result in both civil and criminal retention policy. penalties. 5 6

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• A records retention policy has a number of benefits. Federal Recordkeeping – If sued by an employee for discrimination, aids in Requirements defending the claim . – Document production costs can also be reduced. – Allows employers to avoid costly penalties and potentially dispositive evidentiary sanctions – Limits the number of documents to which future plaintiffs’ may gain access.

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Federal Recordkeeping Requirements Federal Statutes Applicable to Baseline Statutes Private Employers 1-14 Employees: • Title VII of the Civil Rights Act of 1964 • Immigration Reform and Control Act of 1986 • Coverage depends on number of employees. • Consumer Credit Protection Act of 1968 • IRS Regulations under the Internal Revenue • Employee Polygraph Protection Act of 1988 Code (IRC) • Lilly Ledbetter Fair Pay Act of 2007 • Federal statutes applicable by employee numbers: • Employee Retirement Income Security Act of 1974 (ERISA) • National Labor Relations Act of 1947 (NLRA) – 1 – 14 – 50+ • Fair and Accurate Credit Transactions Act of • Newborns’ and Mothers’ Health Protection Act of 1996 – 11 – 14 2003 – 100+ • Fair Credit Reporting Act of 1969 (FCRA) • Occupational Safety and Health Act of 1970 (OSHA) • Fair Labor Standards Act of 1938 (FLSA) – 15 – 19 – Federal Contractors • Omnibus Transportation Employee Testing • Federal Insurance Contributions Act of 1935 Act of 1991 (FICA) • Sarbanes-Oxley Act of 2002 (SOX) • Federal Unemployment Tax Act (FUTA) • Uniform Guidelines on Employee Selection • Health Insurance Portability and Procedures of 1978 Accountability Act of 1996 (HIPAA) • Uniformed Services Employment and • Hiring Incentives to Restore Employment Act Reemployment Rights Act of 1994 of 2010 (HIRE) 9 10

Additions to Baseline Statutes Federal Recordkeeping Requirements By Employee Size • Title VII of the Civil Rights Act of 1964 • Immigration Reform and Control Act of 1986 Types of • Consumer Credit Protection Act of 1968 • IRS Regulations under the Internal Revenue Federal Contractors? Add 9 more statutes • Employee Polygraph Protection Act of 1988 Code (IRC) • Lilly Ledbetter Fair Pay Act of 2007 • Employee Retirement Income Security Act of Documents Covered 1974 (ERISA) 100+ Employees: Add• 2 Nationalmore statutes Labor Relations Act of 1947 (NLRA) • Fair and Accurate Credit Transactions Act of • Newborns’ and Mothers’ Health Protection and Retention Periods 2003 50+ Employees: Add 5 moreAct of 1996statutes • Fair Credit Reporting Act of 1969 (FCRA) • Occupational Safety and Health Act of 1970 (OSHA) • Fair Labor Standards Act20 of– 1938 49 Employees: (FLSA) Add 3 more statutes • Omnibus Transportation Employee Testing • Federal Insurance Contributions Act of 1935 Act of 1991 (FICA) 15 – 19 Employees: Add• Sarbanes-Oxley3 more statutes Act of 2002 (SOX) • Federal Unemployment Tax Act (FUTA) • Uniform Guidelines on Employee Selection • Health Insurance Portability11 – and 14 Employees: Add Procedures3 more statutes of 1978 Accountability Act of 1996 (HIPAA) • Uniformed Services Employment and • Hiring Incentives to Restore Employment Act Reemployment Rights Act of 1994 of 2010 (HIRE) 11 – 14 Employees: Add 1 more statute

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Recruitment and Compensation, Payroll Employment Action Records and Tax Records • Payroll records containing employee’s personal and General Employee Data information and compensation history. • Job applications, • Polygraph test results. Statute Retention Period postings, resumes, etc. – And reasons for FLSA,,, EPA, FMLA, ADEA, and OWBPA 3 years administering them. Title VII and ADA 1 year • Basic employee data. Lilly Ledbetter No requirements. • Federal contractors. • Form I-9. Wage Computation Records 2 years – Affirmative Action Plan FICA, FUTA and IRC 4 years for minorities and Federal Contractors: women. 3 years from Service Contract Act and Davis-Beacon Act completion of project

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Health, Safety and Medical Records Records Retention Period OSHA – Log of occupational injuries and illnesses Medium of Retention Walsh-Health Act (Federal Contractors) 5 Years Employment duration + OSHA -Exposure to hazardous materials and Disposal 30 years Medical records, exams, physicals • ADEA, Title VII and ADA 1 year • HIPPA None (confidential) Employee notice of continuation of group health plans • COBRA None (ERISA for 6 years) Drug and alcohol test records

• Omnibus Transportation Employee Testing Act (DOT) 1-5 years 15 16

Medium of Retention and Disposal Physical vs. Electronic Records OSHA & ERISA Regulations • Statutes do not specify in what form the records • OSHAOSHA: An employer can keep records must be retained. on computer equipment only if the – Documents must be readily accessible and readable system is capable of producing paper to facilitate government agency audits. copies of equivalent forms when access is needed • Section 101 of the Electronic Signatures in Global • In 2002, ERISA set specific standards for when and National Commerce Act,Act effective in 2000. companies create and retain ERISA-required – A company subject to a paper recordkeeping reports, plans and disclosures electronically. requirement may satisfy it by: – Require the use of an electronic retention system that o Retaining an electronic record that “has reasonable controls to ensure the integrity, accurately reflects paper record substance. accuracy, authenticity and reliability of the records o Allowing accessibility to entitled people. o Having a form that can be reproduced. kept in electronic form.” 17 18

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Immigration Reform and Control Act Immigration Reform and Control Act (continued) • Permits electronic • Electronic retention system must meet regulatory standardsstandards: generation and – Ensure the integrity, accuracy and reliability of the electronic retention of the generation or storage system. – Prevent and detect the unauthorized or accidental creation of, Emppyloyment Eli gibilit y addition to, alteration of, deletion of or deterioration of an Verification Form II--99. electronically completed or stored Form I-9, including the electronic signature if used. – Inspection and quality assurance programs evidenced by regular evaluations of the electronic generation or storage system. – For electronically retained Forms I-9, have a retrieval system that includes an indexing system that permits searches [by any data element]. – The ability to reproduce legible and readable hardcopies.

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Medium of Retention and Disposal FTC Disposal Rule Methods Disposal of Records • For the protection of employees, employers should take • Reasonable methods may include: precautions when destroying records under a record – Burn, pulverize, or shred paperpapers containing retention policy to prevent confidential information from consumer report information so that the being stolen or compromised. information cannot be read or reconstructed. – Precautions may include: o Shredding or incinerating physical records. – Destroy or erase electronic files or media o Permanently wiping (i.e. overwriting) records. containing consumer report information so that o Destroying electronic disks. the information cannot be read or reconstructed. • Records Disposal Rule of the Fair and Accurate Credit – Conduct due diligence and hire a document Transactions Act (effective in 2005). destruction contractor to dispose of material – Businesses may be held liable for failure to protect specifically identified as consumer report employees’ personal information obtained from consumer information consistent with the Rule. reports. 21 22

Records Retention Policies for Public Bodies Doreen Canton Partner and Co-Chair, Labor & Employment Group November 20, 2014 Taft Stettinius & Hollister LLP Terry Nestor 425 Walnut Street, Suite 1800 Interim City Solicitor Cincinnati, Ohio 45202 City of Cincinnati (513) 357-9387 / [email protected] Christine M. Zimmer 23 Interim Chief Counsel City of Cincinnati

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 Ohio Revised Code Chapter 149 provides the  In Ohio, public entities are viewed as the basis for a public entity’s records program caretaker of records that belong to the public. ◦ § 149.011 defines “record” ◦ § 149.40 describes the records a public entity shldthould create  Ohio law gives the public broad access to ◦ § 149.43 describes public records requests (how public records. records are made available to the public) ◦ § 149.43(B)(2) requires records retention schedules ◦ § 149.351 prohibits destruction/damage of records ◦ § 149.38 - .42 establishes various records commissions

 “Records” are items that:  According to § 149.43, "Public Records" mean records kept by any public office. ◦ Generally contain information on a fixed medium, regardless of physical form;  §149.011: “’Records’ includes any document,  Paper, computer, film, email, audio or video tape device, or item, regardless of physical form or characteristic . . . created or received by or ◦ Are created, received or sent under the jurisdiction coming under the jurisdiction of any public of the public office; and office of the state or its political subdivisions, whichservestodocumenttheorganization, ◦ Document the organization, functions, policies, functions, policies, decisions, procedures, decisions, procedures, operations or other activities operations, or other activities of the office.” of the public office.

 § 149.40: Head of each public office shall  § 149.351(A): cause to be created “only such records as are necessary for the adequate and proper “All records are the property of the public documentation of the organization, functions, office concerned and shall not be removed, policiespolicies, decisions, decisions procedures, procedures and essential destroyed, mutilated , transferred , or transactions” of the office and “for the otherwise damaged or disposed of, in whole protection of the legal and financial rights of or in part, except as provided by law or under the state and persons directly affected by the the rules adopted by the records [office’s] activities.” commissions” authorized under Chapter 149.

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Generally to do the following:  Create only those records necessary for  Provide rules for retention and disposal of function of the public office. records  Review applications for one-time disposal of  DtDestroy recor ds on ly pursuan ttt to ru les records adopted by local records commissions.  Review and approve records retention and disposition schedules  Adopt records retention schedules to fulfill  Provide that proper procedures for retaining first two obligations. and disposing of records are followed Some minor variations based on the local entity

 Chapter 149 provides for Local Records Chapter 149 establishes the following for the Commissions for: records commission for each form of local government: ◦ Counties (§149.38) ◦ Municip(palities (§ 149.39) ◦ Membership ◦ School districts (§ 149.41) ◦ Frequency of meeting ◦ Public libraries (§ 149.411) ◦ Authority to hire employees (archivist or records ◦ Special taxing districts (§ 149.412) manager) ◦ Townships (§ 149.42)

 Determine the records your office makes and  Establish an appropriate records retention receives schedule  Determine where and how the records are stored ◦ Inventory records ◦ Determine appropriate retention period  Ohio Historical Society/Local Government Records Program provides guidance on  Have schedule approved by Records inventorying public records: Commission http://www.ohiohistory.org/collections-- archives/state-archives/lgrp-home/lgrp-new- procedures

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 To be useful and effective, the description  Retention schedule lists every group of should be more specific than general records the public office creates on an ◦ Allow employees to easily determine when a record ongoing basis. no longer needs to be retained

  Lists a corresponding time period for how Don’t use single term if it covers multiple long each group of records is kept. groups of records ◦ “Payroll records” v. payroll ledger, cancelled checks, W-2s, W-4s, vacation, sick leave, comp time  Use each office of the local government to balances help establish the retention schedule

The initial assessment requires considering  Administrative Value Factors four factors: ◦ Is it used by the office to carry out its duties?

 Administrative ◦ How often or for what time period is it used?  Fisca l  Legal ◦ Would the office or program be jeopardized if the record is destroyed?  Historical  Source of Information: Department head or director

 Fiscal Value Factors  Legal Value Factors

◦ Do the records pertain to receipt, transfer, ◦ Does it document legal rights or obligations? payment, certification, or encumbrance of funds? ◦ If so, needs to be retained for the period related to thosetoseobgatos obligations ◦ Are the records necessary for an audit of the office?  Statute of limitations for claims  Grant or program terms  Source of Information: fiscal officer,  treasurer, auditor Source of Information: Legal Counsel (Solicitor/Prosecutor/Law Director)

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 Historical Value Factors  Determine appropriate length of retention and express clearly: ◦ Does it document the office’s organization, policies, ◦ Number of years decisions, etc.? ◦ After an event has occurred  Resolutions & ordinances; procedure manuals  Until audited  2 years after last grant report filed with HUD ◦ Does it contain significant information about important people , places , or events  Set retention to longest appropriate time to avoid  Special celebrations, such as founding anniversaries destroying records while still needed ◦ Is it a source of information for people outside the public office?  Determine the medium to be used  OHS has recommended retention manuals online:  Source of Information: Ohio Historical http://www.ohiohistory.org/collections--archives/state- Society, Local Government Records Program archives/lgrp-home/lgrp-publications-and-forms

 RC-2:  If the records retention schedule approved by the local records commission, OHS, State ◦ Retention Schedule Auditor provides for disposition of a record ◦ Must be completed by local government entity ◦ The records commission must inform the OHS of ◦ Approved by the local records commission the records to be disppposed of prior to dis posal ◦ Also approved by the Ohio Historical Society and ◦ Submits certificate of records disposal (RC-3) the Auditor of State ◦ OHS has 15 days to select records to retain itself if  Can be submitted electronically to OHS-LGRP it considers the records to have continuing  Copy of RC-2 will be returned to local government historical value  Retention schedules can be revised as needed  Do not dispose of the records before the 15 days elapse

 One-time disposal of obsolete records:  § 149.351(B): ◦ ORC § 149.381(B), (C) ◦ Used if the retention schedule does not identify the ◦ records for disposal, such as records no longer Any person aggrieved by the removal, destruction created by the office of records may bring ◦ Application (RC -1) is sent to OHS and then to the  civil action for injunctive relief and reasonable Auditor attorney’s fees: (B)(1) ◦ Each has 60 days to review application  civil action to recover a forfeiture of $1,000 for each ◦ OHS has option to select to keep records it violation with a cap of $10,000, plus reasonable considers to be of continuing historical value attorney’s fees not to exceed the forfeiture amount ◦ OHS may not retain certain records identified in § 149.381(E)

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 § 149.351(C): ◦ Person is not aggrieved if clear and convincing evidence shows the request for records is a pretext to create liability under § 149.351 ◦ If court determines the action was a pretext, the court may award reasonable attorney ’s fees to the defendant(s): § 149.351(C)(2)  § 149.351(D): ◦ Once one person has recovered for destruction of records under § 149.351(B)(2), no one else may recover a forfeiture for the destruction of the same records

Navigating Transitions and Creating Opportunities – Public to Private and Private to Public –Panel Discussion Finding Balance, Creating Your Personal Presented By: Brand & the Power of Networking • Allison Bisig Oswall, Hanmilton County Prosecutors Office Presented By: • Magistrate Anne Flottman, Warren County Court Yvette Simpson, Cincinnati City Council of Common Pleas • Chandra Napora, Morgan Verkamp, LLC • Laura Welles Wilson, Freking & Betz, LLC

A Special Thanks to A Special Thanks to

For Hosting This Event! For Sponsoring the Networking!

9 9/19/2014 From Public Service to Private Practice GPSolo Magazine - July/August 2005 Home From Public Service to Private Practice Calendar By Mark E. Beck and Joseph M. Hartley Committees Government lawyers, whether they prosecute criminal cases, Contact the advise regulatory bodies, or evaluate and negotiate Division government contracts with outside suppliers, leave Sponsors government service at all stages in their careers to enter the Periodicals private practice of law. Even if they practice exclusively in the area of expertise they developed during their time in Publications government service, each of them faces new and often Resources unexpected surprises upon entering private practice. This article outlines the difficulties we have witnessed when government lawyers attempt to adjust to their new world. This article assumes that the government lawyer is joining an established firm, although we address some of the problems of the government lawyer’s starting a solo practice in the sidebar on page 34.

One difficulty identified by almost all former government lawyers is the transition to the economics of private practice. In almost every case, the government lawyer will now (and suddenly) be billing on an hourly basis. The requirement to keep detailed and accurate time records is one of the first— and often the most psychologically difficult—issue facing the former government lawyer.

Although accuracy is the most important part of effective timekeeping, characterizing the time is very important as well and becomes more complex as the diversity of the firm’s clients increases. An institutional client may require that time be described according to a set of codes that can be lengthy but still maddeningly incomplete. An individual who has never hired a lawyer before may require more explanation about how and why the time is spent. Timekeeping under these circumstances is an art, not a science, and both the firm and the former government lawyer need to be patient and persistent as the lawyer moves along the learning curve of effective billing.

Further, former government lawyers are often startled to learn that billable hours do not necessarily equate with hours worked. The firm may write off hours worked as unbillable or excessive. Unhappily, this often brings more pressure to bear on the former government lawyer; virtually all private law firms have a required billable minimum, and hours reduced means more hours to make up. Government lawyers often put in just as many hours as their counterparts in private practice, but the realities of billing pressures are a common source of dissatisfaction.

Besides difficulties in recording time, many former government lawyers express surprise at the restrictions that economics often imposes on decision making in private practice. Although governmental resources are not unlimited, most government lawyers are at least able to get their cases investigated before making decisions to proceed with a http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/2005_jul_aug_publicservice.html 1/5 9/19/2014 From Public Service to Private Practice particular matter. By contrast, even when facing serious governmental charges, a private client may lack the economic resources to investigate or employ an expert that the lawyer deems advisable.

Although economic issues are perhaps the most obvious difference between public and private practice, more subtle differences present even harder challenges for the former government lawyer. These challenges involve the psychological and emotional differences between practice as a government lawyer and private practice and include:

The client’s emotional state. In government practice, the government goes on, whether the lawyer is successful or not. In private practice, the very survival of the client’s business or the client’s liberty may be at stake. This is not to say that government lawyers do not feel pressure and emotional intensity; they certainly do. But the sheer level of that intensity is felt much more directly in private practice. The client, not the lawyer, controls the case. Contrary to what many people think about government bureaucracies, most government lawyers make decisions about the matters they are handling with the input of few additional persons. The process is not complicated by large numbers of persons needing to have input, and there are rarely significant emotional stakes in a decision. By contrast, a lawyer in private practice may represent a partnership of diverse parties, all of whom want a say in the management of the case. Or the client may be a single individual who rightly believes that she is fighting for her life. Instead of controlling the case and basing his or her decision on the facts and the law, the lawyer in private practice often must allow the client to make the decision. This involves more than client relations; the lawyer must foster the client’s trust so that the lawyer can try to do what should be done for the client—not an easy task if the client does not agree with the lawyer’s assessment. Determining the tone of the case. As a corollary to client control, the client may wish—or even instruct—the lawyer to take a hostile or aggressive stance with the opposing side. Such a stance may not be in the best interest of the client, and the former government lawyer facing this problem for the first time must address and resolve the issue immediately with the client. (In such cases, the law firm should be involved in determining how best to resolve the problem with the client.) This problem is virtually unknown in public service, as government lawyers typically control all aspects of the case. Playing a subordinate role. In private practice, the client may insist that, as the biggest client of http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/2005_jul_aug_publicservice.html 2/5 9/19/2014 From Public Service to Private Practice the senior partner, he or she is entitled to have the senior partner as lead counsel. Even young government lawyers are accustomed to greater independence and often have unexpected authority and experience given their comparatively few years of practice. Often they are unused to carrying the bags for another lawyer selected simply because he or she has more gray hair. The pace of private practice is far more frenetic. Compared to practice in most government agencies, private practice often seems faster paced. Deadlines and demands seem to fly from all sides at once. Many former government lawyers report that adapting to the change of pace was one of the hardest transitions to make. In private practice, you’re often reacting instead of acting. Government lawyers who practiced criminal or regulatory law in public service and continue to do so in private practice can find themselves reacting to governmental demands. The government might make an offer that expires in five days—even though the government spent two years developing the case.

Obviously, none of what we have discussed in this article is an insuperable hurdle for the government lawyer who wants to transition from public service to private practice. However, both the lawyer and his or her new law firm must understand that this transition will not be seamless. The former government lawyer faces a new set of skills and a new set of emotional challenges that can only be mastered with practice. Being aware of the differences between public service and private practice, and recognizing that it takes time to make the transition, will assist both the law firm and the former government lawyer in making that transition successful.

Going Solo

The adjustments the former government lawyer has to make in joining an established law firm are amplified if the lawyer decides to enter private practice as a sole practitioner. In addition to the changes in legal culture between the government office and private practice, the sole practitioner must decide what kind of firm resources are needed—from office space and furniture, to books and online services, to personnel (secretaries, law clerks, receptionists, and whether to use temps or permanent employees), to the myriad governmental regulations affecting every small business (business licenses, tax withholding for employees, working conditions, etc.). All of these issues take time to resolve and cost money. And unlike the government lawyer who joins an established law firm, the new solo attorney will often have no one else to look after these important details. http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/2005_jul_aug_publicservice.html 3/5 9/19/2014 From Public Service to Private Practice For this reason, any government lawyer considering a solo practice needs to be focused and organized. A budget for the first six to 12 months is imperative; it’s unlikely that clients will rush in, and even if they do, payment may not be immediately forthcoming. The new sole practitioner can minimize costs by sharing space with other lawyers; that way, the rent usually includes access to the firm receptionist, library, and photocopier. (While shared space can be an effective cost saver, lawyers in shared office spaces must ensure that their clients understand that other lawyers in the office are not their partners and must take appropriate steps to ensure the confidentiality of client communications.) Scheduling temps may be a partial alternative to having a real payroll.

At the very least, the government lawyer considering a solo practice should join the ABA and state bar sections on solo practice and office management before leaving public service. The bar associations offer a great deal of information, guidance, and wisdom about opening a solo law firm, and with their help the government lawyer can avoid reinventing the wheel and repeating the same mistakes that so many sole practitioners make when they first start up.

Erecting An Ethical Screen

Occasionally, a former government lawyer joining a private firm will discover that the firm is handling a matter involving the same governmental office that the lawyer just left. This usually does not pose a problem for former government lawyers who either were not directly involved with the matter or were not in senior management positions. Any such substantial involvement, however, creates a conflict of interest, which the law firm and former government lawyer must address directly.

Under such circumstances, ABA Model Rule 1.11(a) permits a screening process whereby the law firm may continue with such representation. The former government lawyer, absent written consent of the governmental office he or she just left, cannot represent the client. However, the law firm is not vicariously disqualified from such representation if it takes two steps:

‑the former government lawyer is screened from any participation in the matter and is “apportioned no part of the fee therefrom;” and

‑written notice is promptly given to the appropriate government agency.

ABA Model Rule 1.11(a) does not apply in all http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/2005_jul_aug_publicservice.html 4/5 9/19/2014 From Public Service to Private Practice jurisdictions. Check your local rules of professional conduct for any variations.

Mark E. Beck is a former assistant chief in the U.S. Attorney’s Office in Los Angeles, California. He is a shareholder in Beck, DeCorso, Daly, Kreindler & Harris, PC, in Los Angeles, where he represents businesses and individuals in white-collar criminal matters, regulatory matters, and complex civil litigation. He can be reached at [email protected]. Joseph M. Hartley teaches law at Concord Law School and lives in Santa Monica, California. He can be reached at [email protected].

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6 comments by Chris Hill on September 5th, 2013

http://lawyerist.com/69605/lessons-learned-going-government-biglaw-solo-practice/ 1/11 9/19/2014 Lessons Learned Going from Government to BigLaw to Solo Practice — Lawyerist

Starting a law firm after 13 years of practice in government and at a law firm is a very different proposition than going solo soon after law school. Chris Hill made it work. Here’s how, and what he learned. — Ed.

If you asked me almost 16 years ago as I graduated from Washington University School of Law (St. Louis, not Seattle) what area of law I would end up enjoying and practicing, construction law would have been so far from my mind that I would not have thought to reject it. Like many 3rd-year law students in what at the time was considered a tough job market (yes, I know that it has only gotten tougher), I was just looking to be a litigator. I didn’t even have a particular area, aside from “civil” in mind.

Of course, my law school had Moot Court and a couple of litigation clinics. I had also worked at the St. Louis Circuit Attorney’s Office and a small FELA plaintiff’s firm in the summers. Aside from this, I had nothing but theory in my head and what was eventually a pretty good transcript going for me. I also had a wife and a daughter on the way and needed a job.

So, I moved back to my hometown of Richmond, VA to take the bar (I passed) and start my employment at the Office of the Attorney General of Virginia.

The Government Job: Representing the Virginia Dept. of Corrections

Like many new lawyers, I needed a bit of “seasoning.” Luckily I didn’t have much of a chance to worry about it when my new boss pointed out the three file cabinets of open inmate-related civil lawsuits and simply told me to close them and ask someone if you have questions. My first question was “Where’s the courthouse?”

Basically, I was thrown into the deep end, and had to sink or swim. Unlike those that go solo right out of law school, I had two advantages: (1) it is really hard to lose a lawsuit against pro se inmates in the Commonwealth of Virginia and (2) I had people to ask and a built-in support system of seasoned attorneys to lean on. Frankly, I can’t imagine starting from scratch way back then, so I am glad I was able to gain time in a courtroom in a fairly safe environment.

After close to five years and two elections, I decided I needed a change, and headed into private practice at a firm with about ten lawyers.

“Medium Law”

It was at this firm (at the time Meyer, Goergen & Marrs) that I got a taste for construction law and the BigLaw–style practice, with hourly billing and (informal) billable-hour quotas.

MGM had a fairly diverse practice for having such a small number of attorneys. However, the largest portion of the work (at least at the time) was in the area of real estate, small business, and the litigation offshoots of this practice. In http://lawyerist.com/69605/lessons-learned-going-government-biglaw-solo-practice/ 2/11 9/19/2014 Lessons Learned Going from Government to BigLaw to Solo Practice — Lawyerist short, much of the litigation that I assisted with and performed on my own was construction and development related. Mechanic’s liens, contract drafting, and construction litigation made up most of my day as an associate.

At MGM, I was first forced to hunt clients and took my first steps toward the marketing and client development skills that law school did not teach me and that close to five years in government practice had not required. I joined networking groups and handed out cards. Blogging and social media were still a ways off for me (and for most attorneys). Heck, WordPerfect was still being used on a regular basis. Lawyers did their marketing in person or not at all.

After about four and a half years, I left for another firm — DurretteBradshaw — that was about twice the size of MGM. I had a few clients, a practice area that was not heavily represented at this next firm, and a few marketing skills.

DurretteBradshaw, while not a huge firm, ran like a relatively typical BigLaw firm. I had hourly quotas for both marketing and billable time. The first of these was filled in many ways through heavy participation in the Associated Contractors of Virginia, an organization in which I still participate heavily. On the plus side, having the heavy emphasis on marketing further honed the “rainmaking” skills that I still use today. Furthermore, I began my blog while still a principal at DurretteBradshaw. (I paid all the costs myself to ensure that all of the posts were mine).

In 2010, after building a construction law practice for another four and a half years or so, I came to the realization that I was not gaining any additional business in my chosen field by associating with the firm, did a little math, explored the possibilities of further law firm employment, and journeyed out into the world of the solo practitioner.

Reflections on Solo Practice

I did not jump right into solo practice. In July of 2010, after 13 years of law practice, I opened up The Law Office of Christopher G. Hill, PC as its sole attorney and staff member. It has been the best professional decision I could have made.

Ready for Launch

When I “launched” my practice I (along with invaluable family assistance) did all of the usual things: explored office space, incorporated, found malpractice insurance, registered the firm with the Virginia State Bar, opened bank accounts, etc. I also sent out actual announcement cards. I did not send e-cards or some e-mail blast that I was sure would end up in the “Spam” or “Trash” folder. I also plastered the move up on my blog and on the other social media sites at which I have profiles.

I also hired an accountant to take my expenses and income and keep track of profit and loss for the firm. He also uses this information to make sure I stay up-to-date with my taxes and to produce a business return and K-1. Even better, his monthly fee is a fraction of the cost of lost productivity that my performing this task on my own would cause.

Aside from those listed above, my “preparations” involved printing cards, signing up for Clio for my billing and document management, finding a comfortable chair, and buying a computer and multi-function printer (the ScanSnap would come later). My transition was a quick one once I made the decision to go solo, so I really didn’t follow any particular formula. I asked if my existing clients would stick with me, and struck out on my own.

These days, I’ve got a two drawer file cabinet that is half full of old files and am as paperless as the practice of law allows.

Clients, Clients, Clients http://lawyerist.com/69605/lessons-learned-going-government-biglaw-solo-practice/ 3/11 9/19/2014 Lessons Learned Going from Government to BigLaw to Solo Practice — Lawyerist Luckily for me, just about all of my construction clients decided to make the move with me. I thought not having a firm behind me could be a liability to my ability to gain business, but it turned out to be a bonus for many of my current and potential clients. My status as a small-business owner made me more — not less — attractive to contractors and subcontractors who were small business owners, too. Furthermore, because I was basically a one-man construction division of my old firm, these clients did not know many (if any) of the other lawyers at the firm, so I did not have any internal, client-related struggles when I left. To the extent that the firm you work for allows it, make as much personal contact with clients as possible to cultivate relationships. By doing this, you will hopefully have a similar experience to mine.

As far as new clients were concerned, a combination of Web 2.0 marketing and handshakes (read: face-to-face meetings) were the key. From the beginning I took other attorneys, clients, and potential clients out to lunch and coffee. I always paid, no questions asked. While this was an expenditure of time and money, I felt that face-to-face contact and a chance to answer questions about my new firm were more than worth it. I also believe that while the internet has great advantages when used correctly, the personal touch closes the deal. This combination has served me well over the last three-plus years.

Lessons Learned

The last three years have been an education in many things, not the least of which are time and cash-flow management. Law school does many things, but teaching its graduates how to make money as lawyers is not one of them. I’ve been able to experiment with fee structures and client service methods so that I can do more than keep the lights on while actually seeing my kids. This flexibility helped me to overcome the challenge of differentiating myself from other attorneys.

Mistakes? What Mistakes?

While the transition to a solo practice was a wonderful time, it was not without stress and the occasional (heh heh) mistake. I’ve spent money on unproductive marketing and spent more than necessary on a sponsorship. I’ve also made the mistake of falling into the “I need money in the door so I have to take every client” trap. This last just made me miserable and I realized that I am better off foregoing the client than fighting that client for payment or pulling my hair out.

Another easy mistake to make is not asking for help. This can be from the clerk’s office, your significant other, or another lawyer. While you went solo for a reason (namely, you wanted to steer your own ship), you can’t know everything; so don’t try. When you have a question that you can’t find an answer to, ask someone. You’d be surprised who will help. I remind myself of this at least once a week after spending two hours on the Internet when a five-minute phone call would have done the trick. You may be solo, but you are not alone.

The key — and this is something I am not always good at — is being able to assess your mistakes and still get some sleep at night. I know that this is hard to do when you don’t eat if you don’t bring in the dough. I’ve spent many a sleepless night or cranky day after which my wife gets an apology because I act short with her or the kids. Just taking a deep breath and talking out the issue with a trusted colleague or spouse (without violating privilege, of course) goes a long way.

Stuff Done Right

The first thing that I realized on going solo was that I like my clients as a general rule. I know; this is not a prerequisite to a successful law practice. For example, it would be hard to like all of your criminal clients. Just be sure that you are able to smile during the day. http://lawyerist.com/69605/lessons-learned-going-government-biglaw-solo-practice/ 4/11 9/19/2014 Lessons Learned Going from Government to BigLaw to Solo Practice — Lawyerist I also like my area of law, and I plan to stick to it. I don’t try to be all things to my clients. If you’re a criminal lawyer, be the best one you can be, and refer out other matters to trusted friends and colleagues. Many solos and boutique firms specialize in practice areas you don’t handle. I have cultivated this fact, and it’s helped me immensely.

Hiring my accountant was also one of the keys to success. Aside from the increased productivity because I don’t have to spend time every month to determine profits, this decision taught me that outsourcing some things is not a bad idea. Spending money is okay when the alternative is less production (read: influx of cash) and more stress. Life without a net is stressful enough without making it harder on yourself.

That said, start small. Do a careful analysis of what a certain expense (whether a subscription to Westlaw or Lexis or a new gadget) will add to the bottom line, either in peace of mind or in dollars. Try many things, but stick with few. Be ready to jettison those things that don’t work for you. I had to have an office, you may not. I use a Blackberry, but you may prefer an iPhone. It would be a mistake for me to think that my setup would be perfect for you.

Treat the latest technology advice as just that: advice. Just because the cloud is a big buzzword these days does not mean that everything in the cloud will work for you. While I can’t imagine running my practice without cloud-based tools, I also can’t count the number of web-based ideas I’ve tried and dropped over the years. I have probably gained more by simplifying than I ever would have through addition for additions sake.

You Left the Firm for a Reason

Are there days where I wonder what I’m doing? Yep. Are there days I sit there and wonder if my clients will ever pay me? Yep. Do I sometimes wonder if just getting a paycheck would be more secure? Uh Huh. These are the constant psychological challenges to starting and maintaining a solo practice after being at a firm with the (at least seeming) security that that provided.

Are there cash flow ebbs and flows? Yes. Do you have to keep from spending money on that shiny new Mac when cash flow is good to keep from having an issue when there’s a lull? Sure. Do you get ornery clients that take more of your time than they are willing to pay for? Absolutely. These are just a few of the business (yes your firm is a business after all) challenges that need to be overcome, and none are insurmountable.

For every challenge, there’s an upside. I have more flexibility. I keep what I make and don’t have to pay for the overhead and salaries of others. I can decide what to charge and work with clients on what is a good billing basis. I smile more because I don’t report to anyone. If I don’t want to take a case, I don’t have to. These are just a few of the benefits of solo versus firm (for me).

Most of all, remember that if you are like me and left a firm to go solo, you did it for your own reasons and no one else’s. What works for one solo may not work for you. Now that you’re not at a firm, you get to define success and determine how to move forward. You decided to work without a net so that you can decide how you bill, what clients you want, and how you want to work.

Keep that in mind when making decisions and you’ll have a great time as a solo. I know I do.

(image: http://www.flickr.com/photos/poetprince/3388645449/)

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Christopher G. Hill, LEED AP is Virginia Supreme Court certified mediator, construction lawyer and owner of the Richmond, VA firm, The Law Office of Christopher G. Hill, PC. Chris also authors the Construction Law Musings blog where he discusses legal and policy issues relevant to construction professionals.

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http://lawyerist.com/69605/lessons-learned-going-government-biglaw-solo-practice/ 11/11 ABOVE THE LAW

05 Aug 2013 at 3:45 PM PERKS / FRINGE BENEFITS, PRACTICE POINTERS, SMALL LAW FIRMS, SOLO PRACTITIONERS A Word To Government Lawyers Taking The Plunge By BRIA N TA NNEBA UM

For those AUSAs taking the plunge into Biglaw because they orgasm over having a “former federal prosecutor” handling their “white collar” work, my advice is call me when you realize you’re merely reading compliance documents and walking corporate executives over to your old office to give proffers. For now, you can stop reading here.

Leaving government work to “open your own shop” is a unique proposition. If you’re leaving Biglaw, your main concern is not making what you’re making now. If you’re “going solo” right out of law school, you’re worried about making any money at all.

Leaving government service is leaving a guaranteed salary, the precious “benefits,” and if you’ve been there for a good amount of years, a level of comfort not found in small law firms (with the exception of the federal public defenders who have fallen victim to the sequester and deserve better). The main reason people leave government is the perception that there is more money in the private sector. That was mostly true before the economy tanked. Now it’s not so certain, and it’s something you need to consider before cashing out on your accrued vacation and sick time…

The informal rule used to be that you should leave government work in 3-5 years, and I think that’s still correct. Contrary to what you read on the internet, you actually need a few years to learn how to practice law, and then a little more time to become proficient and figure out where you’re going next. If you stay longer than five years, it’s harder to leave, and if you’re looking for a boss, they may not appreciate that you’ve spent nine years not worrying about bringing in any business or billing hours.

The majority of government lawyers I speak to about leaving who have been there more than five years are more concerned about benefits than salary. Small law firms often don’t have the same benefits that the government provided you, nor do small law firms appreciate your laser focus on “the benefits.” If being “comfortable” is the most important thing to you, which normally includes the all-important health insurance, don’t leave.

It makes it easier to leave if you know a few people. If you’re just starting out or are early in your government career, make sure you network. Prosecutor, county attorney, I don’t care — go to Bar events, join a committee, do something with other lawyers or community leaders. Obviously, you have to make sure there are no conflicts and that your office allows this, but too many good government lawyers go into the private sector and then try to develop relationships. It doesn’t work as well.

Speaking of good government lawyers, some of the best tacticians, strategists, and legal minds couldn’t make a buck with some ink and a counterfeit bill maker. There are just lawyers out there that are great at lawyering, and terrible at business, and vice versa. Make sure that leaving government service is not a suicide mission. Being a great lawyer is meaningless if asking for money scares the crap out of you or your personality is one that scares the children. The most important things to remember for a government lawyer heading to solo or small law practice are that it’s not a 9-5 proposition and that there are no guarantees. And I know, government lawyers get defensive and say, “I work 8- 7.” My point is that in a solo practice or small law firm, there are not as many people doing your work for you (preparing documents, scheduling hearings and depositions, making sure there is paper in the copy machine, making sure rent is paid, making sure your computer works, and about 400 other things). You can’t just leave the office and not worry about the practice.

So it’s simple, government lawyer. You love your job? The only pressure to leave is your own? Don’t be so quick to leave. These days, there are experienced and reputable solo and small law firm practitioners out there making less than young government lawyers. Make sure you understand what it’s going to cost you to maintain your life as it is now, or at least at an acceptable level. That insurance policy you pay $100 a month for is now $1,500. We can start there.

People always ask me if I miss the public defender’s office. Every day. I tell them if I were a trust fund baby, I would go back there. I love my practice, but the days of just going to court every day and not working on the business aspect of the practice were my favorite. It was the best job I ever had.

Brian Tannebaum will never “get on board” at the advice of failed lawyers who were never a part of the past but claim to know “the future of law.” He represents clients, every day, in criminal and lawyer discipline cases without the assistance of an Apple device, and usually gets to work (in an office, not a coffee shop) by 9 a.m. No client has ever asked if he’s on Twitter. He can be reached at [email protected].

TOPICS Assistant U.S. Attorneys, AUSAs, Brian Tannebaum, Government Law yers, Perks / Fringe Benefits, Practice Pointers, Small Law Firms, Solo Practitioners, The Practice 3 Critical Questions To Ask Yourself Before Building Your Personal Brand Page 1 of4

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LEADERSHIP (/LEADERSHIP) 3/11/2014 @ 8:52AM 12.435 views 3 Critical Questions To Ask Yourself Before Building Your Personal Brand

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Although lots of people associate personal branding with the sexy stuff - speaking publicly, being featured in articles, publishing a Blog, there is an important part of the branding process that has to be achieved before all the visibility and accolades start rolling in. The first step? You must be clear about your unique promise of value - your brand.

Here are three important questions to answer before writing blogs, creating your video bio, or signing up to speak at your local professional association. Your brand lives at the intersection of your answers to these questions:

l. What makes me great?

Brands are built around superlatives. W has the hippest hotels. Volvo builds the safest cars. Apple is the most innovative. Paris is the world's most romantic city. Nordstrom provides the best customer service.

What do you do better than anyone else? What's your superpower? To find out, think about what's innate: what are you naturally good at? What do people routinely ask you to help them with? If you exhibit your strengths regularly, ask the people who know you well. They can clue you in and help you discern your innate superpower. Sometimes we are so good at something and it comes to us so easily, we don't realize how valuable it is to those around

http://www.forbes.com/sites/williamarruda/2014/03/ll/3-critical-questions-to-ask-yourself... 9/15/2014 3 Critical Questions To Ask Yourself Before Building Your Personal Brand Page 2 of4

us.

2. What makes me unique?

If there is nothing unique about your strengths, you're merely a commodity. You must know what makes you stand out from the myriad others who do what you do. It could be your point of view or your expertise in a niche area. It might be a personality characteristic, endemic trait or quirk. Or it could relate to how you get things done - your unique way of producing results. If what you do and how you do it are no different from everyone who shares your job title, you have veiy little leverage. Why would someone choose you over the others who share your capabilities?

To answer this question, try out this brief but insightful exercise: Get a sheet of paper and draw a line down the center vertically. On the top left, write SAME and on the top right, write DIFFERENT. Then, think about others who perform the same work as you, especially the ones who are striving for similar goals. In the left column, record what you have in common with them. You might include things like having the same degree, accumulating a similar number of years of experience, or having the same job title. Then on the right side, identity the traits and other concepts that differentiate you. You might include items like personality characteristics, life experiences, or communication styles. This brings to light the personal aspects of your identity that make you a unique individual.

3. What makes me compelling? [>

To answer this question, you first need to find out who needs to know you. Who is making decisions about you? Who can benefit from your sendees? Personal branding is not about being famous. It's about being selectively famous. That means being known to just those people who need to know you so you can reach your goals. You would exhaust yourself if you tried to stay visible to everyone. Personal branding requires focus. And that focus should be aimed at your target audience. Your target audience is made up of decision makers, those who influence them, and the people you need to surround yourself with so you can deliver results for your company or clients. http://www.forbes.com/sites/williamarruda/2014/03/ll/3-critical-questions-to-ask-yourself... 9/15/2014 3 Critical Questions To Ask Yourself Before Building Your Personal Brand Page 3 of4

Once you're clear about your target audience, ask yourself, "Why would they become an ambassador for my brand? What would make them choose me, appreciate me, and promote me to others?" Look back at your answers to question l and to the items you included in the "different" column as you responded to exercise 2. Think about what makes you relevant and compelling to your target audience.

When you've carefully answered the questions, write your personal brand statement - a description of your unique promise of value: What you do, How you do it, and for whom, and What value is created when you do it. This is the your personal brand statement. Post it where you will see it every day as a reminder of your unique promise of value.

With your personal brand statement in hand, you're ready to get started on the sexy stuff!

Follow me on Twitter (http://www.twitter.com/williamarruda") and check out my latest book, Ditch. Dare. Do! 3D Personal Branding for Executives (http://www.ditc.hdaredo.eom/y

Join the conversation. Share your thoughts with our Forbes community in the comments section. Use "Follow" at the top ofthe page to receive notifications ofmore personal branding advice from William Arruda.

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ENTREPRENEURS (/ENTREPRENEURS) 11/19/2013 @ 12:24PM 33.812 views The Definitive Guide To Building Your Personal Brand

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Many entrepreneurs and business owners focus exclusively on building their business brands. If £ratvd you look closely at their business branding and Brand (Photo credit: ioop_oh) marketing, it's pitch perfect. The look and feel has been carefully coordinated. The messaging refined until it's within an inch of its ideal customer profile. Platforms are chosen with the utmost care. Google Alerts conscientiously monitor every company mention.

But when you take a closer look at what's being done to help the leaders of the business manage their personal brands... silence. It's a common mistake, but there are many reasons, both personal and professional, that business leaders need to incorporate their own personal brands into their company's broader branding and content marketing efforts. Here's a closer look at why it matters, and some simple steps you can take to easily build your personal brand and manage your reputation.

Why We Don't Focus on Ourselves

There's a common misconception in business that it's the company's brand alone that matters. In certain areas, this is true. For example, when considering small ticket items that are consumer goods such as toothbrushes or toilet paper, the vast majority of buyers are not interested in the company's CEO. But for smaller businesses, service oriented firms, B2B companies, and artisan B2C companies, the owner's brand is absolutely critical.

There are many reasons that this may be true, in whole or in part, from the customer's point of view:

• The name behind the company is part of the value proposition. http://\\^w.forbes.com/sites/jaysondemers/2013/ll/19/the-definitive-guide-to-building-yo... 9/15/2014 The Definitive Guide To Building Your Personal Brand Page 2 of 5

You're buying the expertise of the company's principal, &> and/or the weight of their brand.

You're buying the creative inspiration or artistic vision of the company's principal, as embedded in a product or service.

Your purchase is in the hands of a sole proprietor.

You're making a purchase in an impersonal industry, and a personal face behind the business helps increase your know/like/trust factor.

You're making a purchase in a highly personal industry (for example, think personal training or life coaching) and chemistry with the person behind the business is vital.

And so on. The key here for business owners is to understand that there are many contexts in which your personal brand is as important, or even more so, than the corporate brand you've built for your company.

WhyYour Personal Brand Really Does Matter

There are numerous reasons that having your own brand strengthened by your content strategy benefits your business. I've covered how a personal brand relates to your content strategy in my article, "How to Grow Your Personal Brand With Your Content Strategy rhttp://www.audiencebloom.com/20i.^/04/how-to-grow-your-personal- brand-with-your-content-strategy/")." which is worth a read if you're already employing a content strategy. But it's also important to think of your own bigger goals. Do you hope to start future companies, where customers and investors are likely to be attracted to a strong brand? Do you hope to publish, appear in media, or in other ways expand your own platform?

Have you ever considered consulting or going after an executive position at a company, where a strong platform will help you command high rates? Building your personal brand now helps your business, but it also helps lay the foundation for your future success - whatever direction that might take.

How to BuildYour Personal BrandWhile BuildingYour Company Brand

Many people are intimidated by the idea of building their personal brand while also trying to build their company's brand. But with a bit of planning, this <"} Adobe Marketing Cloud goal can be integrated into your current content strategy with little extra effort. It can also actually benefit your business for the reasons discussed DO YOU KNOW WHAT YOUR MARKETING IS DOING? above. WE CAN HELP. / fi Make the most ofauthor bios: Whether you're

contributing articles, guest posting, or simply being Expand to learn how active on social media, always make the most of author bios. Where possible, showcase your name, along with the name of your firm. For example, "Sarah Smith is CEOof Happy Things Marketing, a company dedicated to helping non-profits thrive in the digital space." It gets your name out there, establishes authority with your title, and yet still manages to put the focus on your company's brand and what they do.

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Use your headshot: When you're asked for an image, use your own professional quality headshot. Studies have shown that social media accounts that feature the logos of businesses tend to perform poorly compared to those that feature a friendly face. In addition to building your face recognition, you'll be setting your accounts up for better performance.

Gofor bylines: Wherever possible, request that articles or guest posts that you contribute attribute you a byline. Many publications don't, but are happy to do so if you ask. Still others will do so if you forego payment in lieu of a byline which can be a good strategy depending on your specific goals with each publishing effort.

Focus on speaking opportunities: Taking advantage of speaking opportunities is a smart way to raise your business' profile and it also puts you front and center. Consider: speaking at a conference about a topic that's related to your business can help you meet clients, network with colleagues, and increase your firm's visibility. It does this by using you as the conduit to achieve these goals, which can make it an effective way to approach marketing and sales. Good speaking opportunities might include both in-person and online opportunities such as webinars. The happy byproduct of this approach is that people who see you speak get to know you personally as an expert in a certain topic or a resource in a given area.

Bigger Branding and Content Considerations

As you've seen by now, the process of building your |§| Adobe Marketing Cloud 'ua» personal brand in concert with your company's brand can be done simply and easily. But there are arguments that can be made for taking bigger, DO YOU KNOW WHAT bolder branding steps. The following YOUR MARKETING IS DOING? recommendations do a bit more for your personal brand, but still fall squarely within the wheelhouse of benefitting your company.

Write a column: Contributing to a publication such as Forbes, The Huffington Post, or Entrepreneur.com on a topic in your field can achieve multiple goals. It quickly helps rocket you to expert status while also showcasing your expertise in a specific area. It also benefits your company, by being mentioned occasionally in your writing, your bio, and with links back to your website. It's important that you focus on creating value first and foremost to get access to quality platforms, but you can also use this strategically in your own marketing and in building your company's name. One common and effective way is by showcasing logos on your website of the publications where your materials have appeared. See the image below for an example. Not sure how to get started with becoming a guest author? See my article, "The Ultimate. Step-bv- Step Guide to Building Your Business by Guest Blogging rhttp://www.audiencebloom.com/20i.q/o4/the-ultimate-step-by-step-guide- to-building-your-business-by-guest-blogging/')."

As Seen On...

Search Entrepreneur.com Fort)CS Engine Watch THE HUFFINGTON Mashable EjTechnorati POST

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Write and publish an eBook: Writing a book is a much bigger commitment than contributing regularly to various publications, but it carries a different level of prestige and brand benefits. The rules have changed significantly with the rise of independent publishing, eBooks, and changing expectations of length. Not long ago, in order to publish a book in your space, you needed to land a contract with a company like Wiley or Wharton Business School Publishing, and then commit the time to develop a 60,000 to 100,000 word tome. While this approach still plays a role in certain strategies, it's now possible to produce a high quality, short book that can dramatically improve your credibility. Furthermore, eBooks allow you to collect email addresses from your readers, which allows you to build your email newsletter list, which is an extremely valuable (http://www.audiencebloom.com/2013/oQ/how- valuable-is-an-email-list/) way to build your brand and revenue. For more on that, see my article, "How to Grow Your Business With Email List Building (http://www.audiencebloom.com/2013/04/grow-your-business-with- customer-list-building/)."

Create a personal website: There are many reasons for wanting to focus your branding efforts on a single site. Specifically, it's twice as hard to get leverage for two websites. However, a single site that's dedicated to your personal brand (something like firstnamelastname.com) can be a wise investment. You end up creating a virtual home that straddles the professional and personal, and can be a place where your brand lives on beyond companies where you work. It can also be useful when you're a serial entrepreneur or an in-demand freelancer that works on multiple projects or companies at the same time. People always know where to find you and you can archive your best and latest work for your own and public reference. If nothing else, grabbing the domain name that corresponds to your name prevents someone else from doing so, and using it to impersonate you or say bad things about you.

Monitor your own mentions: It's important to be on top of your own mentions, in the same way that you apply these measurement strategies to tracking £V Adobe Marketing Cloud brand mentions of your business. Employing simple tools like Hootsuite and Sendible for social listening, and Google Alerts for web mentions will help you DO YOU KNOWWHA stay in tune with discussions where a quick YOUR MARKETING IS DOING? comment can keep you in control of discussions that affect your brand. Moz's recently-launched Fresh Web Explorer (http://moz.com/tools/fresh-web- Expand to learn how explorer") is an excellent tool for monitoring web mentions as well, and seems to do a betterjob than Google Alerts.

Conclusion

Building your personal and professional brands are activities that will move all of your business goals forward. It's possible to create a content strategy plan that encompasses both objectives, without compromising your bottom line objectives. Do you have experience finding creative strategies to build your brand while building your business? Let me know your best tips in the comments below.

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INNOVATE Create Your Personal Brand: 8 Steps

BY GEOFFREY JAMES @SALES_SOURCE

Take control of your online presence to create a memorable personal brand.

Personal branding has evolved since management guru Tom Peters defined the term way back in 1997. (He also provided some wicked quaint advice, like "sell the sizzle, not the steak.")

Today, your personal brand reflects the information that's available about you on the Web, mostly on social media platforms. This post explains how to create your personal online brand online, based on interviews with four ofthe smartest people in the branding business:

1. Know yourself and what you're good at.

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Your personal brand reflect who you are,so you can't possibly brand yourselfifyou're clueless about yourself. This doesn't mean navel-gazing, but rather a realistic assessment of your strengths and weaknesses, what you love doing, and the skills that you've mastered or are workingto master.

2. Create a memorable brand name.

Ifyou've got aunique name, make that your brand name. Ifnot, create abrand name that's a hybrid ofyour name and your career direction. "You want people to find you, not somebody who's got the same name as you," explains Dan Schawbel, author ofMe 2.0:4 Steps to Building Your Future. Remember, though, ifyou put your direction in your brand name you're tied to that direction. (That'swhy Step 1is so important.)

3. Capture your online turf.

Buythe domain name that corresponds to yourbrand name and secure the Facebook page, Twitter account, Google+ account as well. Ifyou find that yourbrand name is already "owned" create adifferent brand name. With Linkedin, you'll use your real name, so put your brand name prominently in your profile.

4. Build a website for your domain name.

This is easier than youthink. There's no reason to struggle with a complicate website editor when you can createa perfectly usable site using a product like WordPress. (Thereare alternatives butWordPress is the de-facto standard.) You don't want atraditional website anyway, since they have an "institutional" feel about them anyway.

5. Set up automatic updating.

To reduce the busywork ofall those different social media platforms, setup an application that allows youto simultaneous post to all ofthem. Forthat past few months I've beenusing the free version 0fH00tsuite.com, butthere are many alternatives outthere both free and fee.

6. Share useful content on a regular basis. Don'ttry to be a full-time blogger.Instead share"helpful tips relatingto the products [you] sell, relevant news, and personal updates that build emotional connection and convey positive character, such asa philanthropic interest," explains Clara Shih, CEO ofHearsay Social, writing in the Harvard Business Review.

7. Get feedback from people you trust.

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The advice and encouragement of others helps keep your "brand development" on target. Philip Styrlund, CEO ofThe Summit Group, recommends setting up a "board of directors"—a few trusted colleagues who can assess your ongoing efforts and act as an informal sounding board.

8. Be authentic, even a bit risky.

As long as you don't come offlike you're crazy or weird, a little opinion in your online presence is a good thing, according to Meg Guiseppi, author ofthe book 23 Ways You Sabotage Your Executive Job Search. "Don't assume that being authentic will turn people off," she explains. "Nobody is interested in working with a cookie cutter."

Like this post?Ifso, sign upfor thefreeSales Source newsletter.

IMAGE: ZACHARY SCOTT /GETTY LAST UPDATED: APR 23, 2013

GEOFFREY JAMES | Columnist

Geoffrey lames, a contributing editor for lnc.com, is an author, speaker, and award- winning blogger. Originally a system architect, brand manager, and industry analyst inside two Fortune 100 companies, he's interviewed more than a thousand successful executives, managers, entrepreneurs, and gurus to discover how business really works. ©SALES SOURCE His most recent book is Business Without the Bullsh *t: 49Secrets andShortcuts You Need to Know. If you enjoyed this post, sign up for the free weekly Sales Source newsletter.

The opinions expressed here by lnc.com columnists are their own, not those oflnc.com.

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